The main aim of this new regulation is, not only to harmonize the different national regulations existing at European level, in order to guarantee equality on the protection of personal data regardless of the nationality or place of residence, but also to ensure a legal framework adapted to the digital era.

Because the implementation of the GDPR is almost upon us, companies need to hurry up if they want to comply with the new obligations arising from said Regulation. Among other aspects, EU companies should be aware of:

The need to comply with the principles of accountability and transparency. This involves quite a significant amount of documentation requirements. Other principles such as privacy by design and by default, must also be observed. This entails designing and implementing appropriate technical and organisational measures.

Making an analysis of the potential risks in order to find weaknesses in the treatments performed by the company as regards personal data management.

Obligation to provide, at the time of the collection, some information regarding the identity of the controller (i.e. who decides how and why such data is processed), the purposes of the processing, the legal basis for the processing, the period for which the personal data will be stored and, where applicable, if the controller intends to transfer personal data to a third country or international organisation.

Attend and inform the data subject (i.e. individuals whom the data is about) about several data protection rights such as the right to be forgotten, right to restriction of processing, right to object an automated individual decision-making or right to data portability.

Notify the supervisory authority about any breach regarding personal data (e.g. in Spain, the Spanish Data Protection Agency) without undue delay and, where feasible, no later than 72 hours after being aware of it.

Designate a Data Protection Officer, if the core activities of the company consist of processing operation which require regular and systematic monitoring of data subjects on a large scale or if the core activities of the company is to process special categories of data, as may be the case of business performing profiling activities.

And if the company processes personal data using new technologies, it will be necessary, prior to the processing, to carry out an assessment on the impact of the envisaged processing operations on the ability to ensure appropriate protection of personal data.

In Latin America, data protection is a very topical issue. One of the major developments in the region was the creation in 2003 of the Ibero-American Data Protection Network (RIPD). This network began with representatives of 14 Ibero-American governmental agencies and focused its first activities in trying to advance in the adoption of a new regulatory framework and implementation of data protection authorities in its member states.

After the advances in the legal and institutional fields, the network switched its focus to cooperation activities: exchange of information and experiences, as well as the development of common actions and policies.

In this context, and now enlarged to 21 member states, the RIPD has recently recognized in the “RIPD in 2020”, that there are some countries such as Bolivia, Brazil, Ecuador, El Salvador, Honduras, Guatemala, Panamá, Paraguay and Venezuela, where an additional impulse regarding the legal framework is required.

Thanks to the RIPD’s labour, in June 2017 the “Ibero-American data protection Standards” was presented in Chile. Its main objective is to facilitate the flow of personal data, not only between Ibero-American states, but also beyond their borders, in order to foster innovation and economic growth in the region.

Those Standards were developed taking into consideration other international regulations, such as for instance the GDPR. It seems that one might say that the GDPR has a positive impact beyond the European borders, particularly in Ibero-American States; where the European example seems to inspire them to work towards homogeneous rules in the region facilitating the flow of personal data.

All the aforementioned, is important for European companies: if they are considering to transfer personal data to Latin-American companies, they will need to comply with the GDPR and, in particular:

Make sure that the third country where the company towards which personal data will be transferred is located in a country that ensures an adequate level of protection according to the European Regulation. Currently only Uruguay and Argentina comply with this requirement.

In the absence of the above, it could be possible to guarantee appropriate safeguards through binding corporate rules or standard data protection clauses.

Otherwise, companies could try to have the data transfer covered by one of the exceptions provided in article 49 GDPR: for example, because they have obtained explicit consent from the owner or because the transfer is necessary for the conclusion of a contract.

To sum up, if your company is considering transferring personal data from Europe to Latin America your company must comply with the GDPR. Do not forget it! Time goes by and 25 May 2018 is there!

Francis Gurry, WIPO’s Director General, pointed out in a recent interview the challenges posed by new scientific and technological developments for IP administration, policy and governance.

In this sense, it is nothing new that Intellectual Property Law, as any other field of law, lags behind technological, market and social realities. For this reason, it is in the hands of law-makers, authorities and industry to take all the necessary steps to adjust current regulations to the existing scientific and technological development.

However, if we actually look at the European and Latin American national and regional legislation panorama, we can notice that most of them require an update and adjustment in their copyright regulation to match the new digital reality.

In this regard, the major challenges to be addressed are the digitalization and distribution of content over Internet, the improvement of access to online content and cross boarder access, the current and future development of the “Internet of the Things”, appropriate protection of creators and fair payment for the online use of their works, among others.

Nonetheless, the digital revolution not only involves difficulties, but also opportunities. As regards copyright, creators such as Imogen Heap, are becoming aware of the business prospects that new technologies like Blockchain can bring to them. Imogen Heap, through her Mycelia project, has been the first author that has distributed her song, Tiny Human, by means of a smart contract using block chain.

Given the current context, it is not surprising that the negotiating and adopting a new Copyright legislation is not a piece of cake.

In Europe, for instance, the proposal of the Directive on Copyright in the Digital Single Market, has received nearly 1,000 amendments. Even so, the approval of said Directive is getting closer. On the 10th of October, the Juri Committee is expected to vote on the content of the new EU Copyright Directive.

The key issues at debate are:

The creation of ancillary rights for press publishers (art.11).

The obligation for online service providers to monitor and prevent copyright infringements by users (art. 13).

Fair remuneration in contracts for authors and performers (art.14-16).

It must be note that In Europe, a Community Directive of 2001 is in charge of regulating the Digital Market.

In Latin America, most national and regional copyright legislations (such as the Decision 351 of the Andean Community) also require an update to match the requirements of the digital era. It should be borne in mind that the majority of them were approved long before the irruption of the information and communication revolution.

Nonetheless, these region are taking action as reflected in the last Regional Meeting for Directors of the Copyright Offices of Latin America held in Colombia. The participating countries (Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela) addressed current global issues. “Rights management in the digital environment: initiatives to make the management and ownership of digital rights more efficient” and “Orange Economy, Challenges and Opportunities in the Fourth Industrial Revolution, Intellectual Property Rights and Entrepreneurship” are one of the topics that were addressed during the Meeting.

Even though many Latin American countries have introduced modifications in their national Copyright laws over the last years, such as for Colombia, Ecuador or Brazil, as a rule of thumb, it can be said that digital challenges have not yet been fully addressed in this region.

Expect legislative changes in the near future. To be up to date about Latin America’s latest copyright and IP developments, do not forget to visit our news section or subscribe to our newsletter.

Having their own business is a yearning for many employees tired of a working life that does not fill anything else than their bank account. They endure frustrations and abuses for a not always decent salary, and feed their dream with the massive DIY-tools that the Internet provides.

More than a few are eventually convinced by the siren calls of tempting opportunities offered by the digital world to exploit an idea in a profitable way with no (or less) tangible means and leap into the void without a second thought.

In order to prevent your savings, hair and other valuable resources to be wiped out by a temporary insanity, we are listing some of the most common Intellectual Property (IP) – related mistakes Start-Ups make too often and that you must avoid if you want to succeed.

1. Poor knowledge of the sector

Working at Disneyland is not the same as visiting it. Likewise, being a (more or less specialized) consumer does not give you a complete picture of the sector. It’s key to know the internal mechanisms.

Given that experience is the best teacher, during the initial stages you’d overcome this deficiency with a deeper prior analysis and better planning.

However, many start-ups embrace adventure without being aware of the frequency or speed of technological developments in the sector, where to find new opportunities for growth or licensed-technology, or what patents are relevant to their products.

In other words, they do not know what Intellectual Property Rights (IPR) are needed to operate and its availability.

In regard to the first, sectorial guides (i.e. Machinery and IP in Mercosur and Chile) may help you to identify the relevant IPR to your case and understand why and when should them be protected (i.e. a graphic designer would need to know more about copyrights and trademarks, and pay less or no attention to patents).

In regard to the second, “Out of sight, out of mind” is not a good IP policy, since not knowing the law does not allow you not to obey it. Other’s IPR infringement may take place though you did not want to. You’d better check the trademarks, patents or copyrights owned by your competitors to avoid it.

Thanks to that, you’d not only escape a costly legal proceeding, but you’d have a deeper knowledge on how innovative you are and be able to adapt your commercial strategy.

Performing a prior search is hence indispensable. Unfortunately, you cannot always access comprehensive, reliable, free-of-charge databases that can be easily handled by the average user.

The solution calls for expert advice.

2. Fail to identify IPR and deficient valuation

The idea that inspires a different business’ birth tends to be unique to the father’s eyes.

Nonetheless, just a few know exactly what part can be protected (i.e. technical feature, aesthetical aspect, name, information itself, etc.) and how is it given material form. No, the answer is not always “patent”.

You can also find utility models, designs, trademarks, trade secrets or copyrights, among others. Generally speaking, commercialization of a new product involves many IPR simultaneously. For example, the technology used by Goretex (registered trademark) was patented and the shoes appearing on the catalogues and brochures (protected by copyright) have been previously registered as designs.

Though, if you think that IP is only for technology-based or big companies, you are wrong. Any company has some potential (or current) IPR.

In fact, all companies daily work with intangibles that could be protected as IPR –and, thus, be exploited-, but have no clue about it.

Your company or product name can be registered as a trademark and reach an incredible value. If you don’t believe me, you’d better check Forbes’ rank of the 10 most valuable trademarks.

If you are not aware of what you have in your hands, you can hardly assess its value properly and protect it accordingly. This error can cost you dear if we bear in mind that for most Start-Ups, IPR often represent the most important asset of the company.

3. Bad timing

Sadly, IP protection is way too common done as an after-thought or be left for a later stage.

Thus, many entrepreneurs figure out that the innovative product on which the business project is based cannot be patented anymore, either because:

Since they began to develop it until they finally were ready to launch it, it has been too long and in the meantime other company applied for similar patents (first-to-file wins, remember?); or

They disclosed it (via online or at a trade fair) and it is not new anymore. Many Latin-American countries do provide a grace period for patents, but you need to know which and its requirements.

Those of them who’d rather release the product and protect it depending on its success can be committing IP offenses unknowingly. At best, the product was really innovative and they could face any of the mentioned scenarios.

The same situation may be seen as respect to the trademark. Before naming your company or product, be sure that it is available in your countries of interest (think internationally!). Otherwise, you’d have to choose a new name or be forced to negotiate with the right holder (i.e. the “iphone” trademark dispute between Gradiente and Apple that took place in Brazil was a good example).

Usually, the first to apply for its registration gets the exclusive right (first-to-file principle). But some Latin-American countries have a different regulation. Hence, it is recommended to be assisted by specialized professionals from the beginning and have a case-by-case approach.

On the other hand, there are some opportunities that apparently cannot be missed. However, a trade fair or a meeting with a promising client can be a double-edge sword. You’d better calm down and perform a good search and design -supported by an IP expert preferably- involving all the relevant parts (e.g. designers and marketing team).

4. Ownership: absence of clarity and awareness

Creative processes tend to be convulsed and it’s hard to distinguish who created what and in which proportion (particularly, when ideas arise from brain storming or daily work).

Moreover, when you deal with external providers or a team, many of them do not know who is the real owner of the work. The assignment rules are usually contained in the IP regulation and the employment or project contract. This is why you must pay attention to its content and try to clarify rights and obligations of each part and adapt them to your needs before your start working.

In this regard, many disputes arise when the employee thinks that everything he/she creates belongs to him/her (while it tends to be the other way around).

For this purpose, a well-drafted contract is crucial. Be as much specific as possible and try to think on the most -and less, but harmful- likely scenarios and include a clause for that.

Start-Ups rarely avoid application of knowledge gained from the company they previously worked for or achieved the final result without using its means (although it was during their leisure time).

This is of central importance when you are looking for funding or partnership (ascertaining the correct IPR assignment is one of the key points of any due diligence conducted by investors to give the green light) or when license agreements are signed.

At internal level, it is equally important that the rest of the company members know the scope of the IPR they work with (i.e. what countries are covered, can it be modified for an online campaign, is there a limit to the number of licenses, what happens with any improvement on it). For-profit use of open source technology or under for personal use only license; inclusion of copyright-protected works without permission in catalogues or social networks; or utilization of patented technology without realizing it, are some of the most common errors and can be prevented with an active IP awareness policy by trainings like those provided by the Latin America IPR SME Helpdesk.

5. Lack of (or improvised) protection strategy

The absence of a clear short/medium term IP strategy is a serious handicap to the business project’s success –or event survival-. It’s impossible to identify the needed tools to achieve the objectives if they are not well defined.

Moreover, many entrepreneurs underestimate the importance of own and other’s IPR or overrate the power of a registered IPR (patents to not enforce themselves automatically: you have to negotiate with infringers or start legal actions). Additionally, some businessmen forget that IPR also entail certain obligations (i.e. trademarks’ obligation use was set to avoid defensive registrations in many Latin-American countries).

As a result, they find themselves:

with weak IPR to save money in legal assistance

with IPR that they don’t use; or

forced to request lawyer’s support to solve a non-registration related problem

Notwithstanding, the vast majority of the mentioned mistakes so far can be prevented with correct planning.

Or, to put in other way, you have to invest in IP and avoid relying upon improvisation.

Do not forget that the IP strategy must be aligned with the business strategy (and not vice versa). Short, medium and long term must be taken into account, too; and plans must be regularly updated and suited to change.

6. Who needs a lawyer?

You can find many infinite templates, examples and tutorials on how to elaborate your own agreements across the Internet. As a matter of fact, it is really tempting to take four of them and adapt them to your case –at high risk of copy-paste abuse-.

The so termed Frankenstein effect is one of the most frequent errors, given the high cost of legal assistance and low awareness of the importance of a well-drafted contract (in particular when no problem arose).

It must be however noted that IP is a very complex matter, that varies a lot from country to country, and that an in-house lawyer (if the company has one) -that already deals with tax or sales legal issues- can hardly ensure a high level of efficiency.

Although most of the entrepreneurs are used to do it all by themselves, they must know their limits, be wise and delegate to experts (when needed).

Do not forget that if you trust a lawyer from the beginning, you can save a lot of money (fixing the mess created can be two or three times more expensive).

Indeed, the Latin America IPR SME Helpdesk was created in response to all those EU SMEs that want (and must) to know more about IP and how to use it as a profitable business tool, in particular when they operate in Latin America –or are intending to do it-.

Moreover, some of the mentioned trainings (and much more) are explained in depth in the training sessions they organize (i.e. Start-Ups in Latin America: Most Common IP errors).

Nonetheless, when the problem you have is beyond your knowledge –gained thanks to the E-learning documents and trainings offered by the Helpdesk-, you could always use the Helpline. All any of its services, it is free-of-charge and totally confidential.

Furthermore, it is available in 5 different languages (English, Spanish, French, German and Portuguese) and the experts provide first-line assistance within 3 working days.

On April 20, in a session at the Global Network for Advanced Management Fifth Anniversary Symposium, a panel of experts, including former U.S. Secretary of State John Kerry, will lead a discussion of the future of globalization and the implications for business and management education. Watch the discussion live.

Globalization encouraged companies to design and implement their business strategies to take advantage of the competitiveness of each region, configuring and adapting the value of their supply chains in manufacturing, investment, and trade. It’s clear that the global value chains took years to configure, with the flexibility to respond quickly to changes in technology and consumer trends, and regulations and financial cycles, among many other global economic factors.

However, this status seems to be facing challenges, mostly from political events and apparent anti-globalization postures in several countries, including the U.S., the U.K., and many others around the world. The question that arises is how these politically led movements and governments will impact the competitiveness of the current global value configuration? In practice, what does it mean in terms of changes to regulations and benefits of trade and direct-investment agreements, double-taxation treaties, property-rights protection, environmental regulations, and quality standards, among many other economic factors that define the feasibility of both production and consumption?

The impact of the future of globalization or anti-globalization depends on several factors. Some of these factors are the political and economic views of the new generation of leaders and governments on how profound and deep the changes in trade and foreign-direct investment regulations will be, new tax configurations, changes in rules of origin within trade agreements, environmental and logistics regulations, and the non-trade-related issues that governments would probably like to tie to trade, such as immigration, security, border crossings, and democratic processes, among other issues.

How will this new status quo impact a trade-dependent country like Mexico? It depends on how fast governments and companies come to understand their current situation and potential changes, the effectiveness of their capacity to change their global value chains to maintain their competitiveness, and their capacity to negotiate or renegotiate trade regulations with potential partners. We need to remember that changes in a global supply do not come about from one day to the next; it might take years before a company can reconfigure its sourcing, manufacturing process, logistics planning, and so on.

There is no time to waste. The business leaders of multinational and domestic companies must be prepared to understand and evaluate the business environment, to foresee the possible changes, to evaluate challenges and economic impact; they must be able to reconfigure management and organizations, be assertive negotiators with governments as well as with suppliers and customers, and to evaluate and design new processes, products, and customer-service management.

The China, Latin America and South-East Asia IPR SME Helpdesks are holding their Annual Stakeholder Meeting in Brussels on the 4th of April 2017. Joining the three regional Helpdesks as a co-organiser is Business Beyond Borders (BBB), an EU-funded initiative supporting businesses and clusters when attending international trade fairs around the world.

As a valued partner and user of the Helpdesk services, we are delighted to invite you to this event where you will hear about our latest developments, success stories and planned activities for 2017. To register and access the detailed agenda, please click here.

The event will include the participation of complementary key EU initiatives that are all supporting EU SMEs in their internationalisation efforts, as well as various intermediaries and companies. They will all contribute to the interactive panel- and roundtable discussions and will be available for the matchmaking session.

Similar to previous editions, the meeting will be a key opportunity to have your say on the services of the Helpdesks and join discussions on what can be done towards its continuous improvement in terms of support to businesses and collaboration with partner organisations and experts.

THE MATCHMAKING SESSION

The Matchmaking Session will take place at the end of the Annual Stakeholder Meeting place on the 4thof April from 15.00pm – 17.00pm. The dedicated area is located in the premises of the European Economic and Social Committee – Rue Belliard 99-101, 1000 Brussels.

It will be a great opportunity to interact with a wide variety of stakeholders of pertinence to IPR and SME internationalisation. As a company you will get the chance to have your questions answered by relevant experts.

Attendees will include European SMEs with an interest in expanding their business abroad as well as companies already established in, or working with business entities overseas with specific focus on China, Latin America and South East Asia. The presence of business support organisations and other EU supported schemes focusing on internationalisation, makes this an event you simply cannot miss!

Following the Matchmaking Session there will be a Networking Cocktail, to conclude the day.

“Chile has built a balanced property system that seeks to protect the interests of creators and innovators, as well as users and society as a whole,” says Martin Correa, Head of the Intellectual Property Department of the General Directorate of International Economic Relations (Direcon) of the Ministry of Foreign Affairs. The Department coordinates and conveys Chile’s position on international negotiations before the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

Intellectual Property is precisely the focus of the Latin America Intellectual Property SME Helpdesk project, which belongs to the Directorate General for Research and Innovation (COSME Program) of the European Union. The Eurochile Foundation is a partner of this project.

The subject is highly relevant, since a wider knowledge and respect for intellectual property rights leads to improved opportunities for Chilean companies.

“Today, IP has been gaining importance, since it has been proven that it may be an intangible with a significant economic potential not only for consolidated and larger companies, but also for small and medium enterprises. In this sense, knowing the value of IP enables SMEs to value their trademarks and generate spin-offs when granting licenses,” states Correa.

“Additionally, having an invention patent, for example, can be a plus when applying for loans to continue the development of an SME or even for expanding. Finally, IP can encourage the sale of traditional niche products by granting geographical indications. They create communities among small producers of the same product by recognizing its added value. As you can see, being aware and knowing the economic potential of IP can allow SMEs to make better business decisions and to benefit from the profits IP can generate,” he adds.

– What is the state of Intellectual Property protection in Chile?

“The country has made great strides in recent years, introducing major changes to the intellectual property system, such as the enactment of Law 17,336 on Intellectual Property, the reform of Law 19,039 on Industrial Property and the creation of the National Industrial Property Institute (Inapi, in Spanish). There has also been progress in creating tools to bring people closer to IP through programs such as the origin seal and Inapi Proyecta, as well as in boosting the role of the intellectual rights keeper belonging to the Chilean Libraries, Archives and Museums Board (Dibam, in Spanish).”

– What are the pending issues in this regard?

“Chile has a strong intellectual property system with clear and strict rules, comparable to the standards of major international institutions that cover these issues, such as the WTO and the WIPO. Nevertheless, it is important to recognize that new technologies and recent innovations in the digital environment pose new challenges not only for Chile, but for the international community. It should address the interaction between IP and these new developments.”

– What is Chile’s level of compliance regarding international agreements and obligations on this matter?

“Chile has fulfilled its international obligations on intellectual property. In this sense, the current institutional framework in Chile reflects the standards described in our free trade agreements (FTA). It even went beyond what was agreed on the FTAs. However, there are still some issues to be addressed internally, derived mainly from the FTA with the US. One example is complying with technological protection measures linked to copyright, which has not been addressed yet. Therefore, Direcon’s efforts have been instrumental in coordinating thematic working tables to address this issue internally in the near future.”

– What are the most common problems for a foreign company wishing to do business with Chile, in terms of IP?

“Even though the rules on intellectual property in Chile are relatively similar to those in most developed countries, there are some differences that must be taken into consideration when doing business. They have to do with the territorial nature of IP. In this regard, it is important to be aware of certain basics, such as the civilian origin of Chile’s legal tradition and the balance of our system when pondering the interests of creators and innovators, and the interests of users and society as a whole. They differ in each country. Therefore, it is indispensable to learn about the system as a whole in order to enjoy the economic benefits of IP in all its dimensions.”

About Your LATAM FlagshIP

The Latin America IPR SME Helpdesk team proudly welcomes you to its brand new blog, in which you will find updated information concerning Intellectual Property Rights in Latin America, as well as other interesting information about SMEs, Internationalization, R&D or Innovation.

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The Latin America IPR SME Helpdesk is a free service for SMEs which provides practical, objective and factual information about Intellectual Property Rights in Latin America. The services are not of a legal or advisory nature and no responsibility is accepted for the results of any actions made on the basis of its services. The content and opinions expressed are those of the authors and do not necessarily represent the views of the European Commission and/or the Executive Agency for Small and Medium-sized Enterprises or any other body of the European Union.

Before taking specific actions in relation to IPR protection or enforcement all customers are advised to seek independent advice. Neither the European Commission nor the Agency may be held responsible for the use which may be made of the information contained herein.
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